People with Disabilities (NSW) Inc -v- Minister for Disability Services; re (Intellectually & Physically Handicapped Childrens Association) [1999] NSWADT 135

Set aside by Appeal : Set aside by appeal on 12/9/2000 - Remitted back to Tribunal

CITATION: People with Disabilities (NSW) Inc -v- Minister for Disability Services; re (Intellectually & Physically Handicapped Childrens Association) [1999] NSWADT 135

DIVISION: Community Services

APPLICANT: People with Disabilities (NSW) Inc

RESPONDENT: Minister for Disability Services

FILE NUMBER: 994013

HEARING DATES:

SUBMISSIONS CLOSED: 10/08/1999

DATE OF DECISION: 15 December 1999

N Hennessy - Deputy President BEFORE: J Moss - Member J Green - Member

PRIMARY LEGISLATION: Disability Services Act 1993

APPLICATION: Review of decision to approve financial assistance -

MATTER FOR DECISION: Preliminary matter - Application re whether decision is within jurisdiction

Applicant: P French, advocate, People with Disabilities (NSW) Inc REPRESENTATION: Respondent: G Williams, solicitor, Ageing and Disability Department

ORDERS: 1. The Intellectually and Physically Handicapped Children's Association be joined as a party to these proceedings. 2. The application to review a decision under s20(a) of the Disability Services Act 1993 is dismissed as no reviewable decision has been identified.

Background 1 These reasons are similar to those given in relation to Warrah School Society (People with Disabilities v Minister Disability Services; re Warrah School Society [1999] NSW ADT 133). This determination concerns two preliminary issues which relate to applications lodged by People with Disabilities NSW Inc (PWD) against decisions made by the Minister for Disability Services. The decisions relate to Whitehall and Mannix Children's Home which are administered by the Intellectually and Physically Handicapped Children's Association of New South Wales (the Association). 2 Written submissions were provided by both parties and, under s 76 of the Administrative Decisions Act 1997 (ADT Act), I decided that the issues could be adequately determined in the absence of the parties. Application by the Association to be joined as a party 3 The first issue is whether the Association should be joined as a party. By letter dated 20 October 1999 the Association applied to be joined as a party to the application. The proceedings to which the Association seeks to be joined involve an application by PWD for the Tribunal to review a decision of the Minister. That decision is set out in the Community Services (Complaints Reviews and Monitoring) Regulation 1996 at Clause 6(1)(c) in the following terms: "a decision made by the Minister to adopt or amend a transition plan, or to refuse to adopt or amend a transition plan, within the meaning of section 7 of the Disability Services Act 1993." 4 PWD lodged an application in relation to a decision by the Minister to adopt a transition plan for the Whitehall and Mannix Children's Home on 1 May 1996. For reasons which are set out in the Warrah School Society decision cited above, this application was not progressed until recently. 5 On 1 January 1999, the Community Services Appeals Tribunal was abolished and its jurisdiction transferred to the Community Services Division of the Administrative Decisions Tribunal. Under Clause 14 of Schedule 5 to the Administrative Decisions Tribunal Act 1997 (ADT Act): If proceedings were commenced but not heard by an abolished body before its abolition, the proceedings are taken to have been duly commenced in the ADT. 6 The ADT Act s 67(2)(d) and s 67(4) state that: (2) The parties to proceedings before the Tribunal for a review of a reviewable decision are (d) any other person who has been made a party to the proceedings by the Tribunal in accordance with subsection (4), (4) the Tribunal may, by order, make a person who is not a party to proceedings for an original decision or review of a reviewable decision a party to the proceedings, either of its own motion or on the written application of the person, if it is satisfied that the interests of the person are likely to be affected by the original decision (or are affected by the reviewable decision). 7 The Association was not legally represented and did not offer any evidence in their letter to support a finding that their interests are affected by the reviewable decision. However the Minister's Statement of Reasons dated 14 October 1999, sets out the background to the decision. In 1996 the Minister for Disability Services found that the transition plan for the Association conformed with the requirements of the Disability Services Act 1993 and adopted the plan by an order published in the Government Gazette on 4 April 1996. The decision under review relates to services provided by the Association, consequently their interests will be affected if the decision is varied or set aside. Neither party objected to the Association being joined as a party. For these reasons I make an order under s 67(2)(d) of the ADT Act that the Association be joined as a party to these proceedings. Approval of the provision of financial assistance - jurisdictional issue 8 The second issue is whether PWD has identified a reviewable decision made by the Minister to approve financial assistance to the Association. 9 The Tribunal has jurisdiction to hear reviews of decisions approving the provision of financial assistance pursuant to s 20(a) of the Disability Services Act 1993. That section states that: For the purposes of section 40(1)(a)of the Community Services (Complaints, Reviews and Monitoring) Act 1993, any of the following decisions is reviewable by the Administrative Decisions Tribunal: (a) a decision approving the provision of financial assistance if the approval to the provision of the assistance should not have been given under section 10 (2) because the provision of the assistance will not conform with the objects of this Act and the principles and applications of principles set out in Schedule 1 10 On 26 July 1999, PWD lodged an application for review of "a decision to approve financial assistance to the Intellectually and Physically Handicapped Children's Association under s 10 of the Disability Services Act 1993 to operate the Whitehall and Mannix Children's Home." The application states that the date of the decision is not known. 11 According to PWD, the reviewable decision is the annual approval of financial assistance to a service funded by the Ageing and Disability Department under the Disability Services Act 1993. Subsequently, the Tribunal directed the Minister to provide a copy of the agreement to which PWD was referring so that the date of that agreement and its contents could be relied on by the applicant. Following the provision of these documents PWD submitted that the relevant decision approving the provision of financial assistance, is contained in the Continuation of Funding Agreement (the Agreement) between the Association and the Minister executed on 3 August 1999. 12 PWD sought an internal review of the decision on 26 July 1999. PWD has not received a response to this request. This is no doubt because the Minister does not consider that a reviewable decision has been made, However, section 55(1)(b) of the ADT states that: A person may apply to the Tribunal for a review of a reviewable decision only if: (b) an internal review is taken to have been finalised under section 53(9) 13 Section 53(9) provides that an internal review is taken to be finalised if the applicant is notified of the outcome of the review or the applicant is not notified of the outcome of the review within 14 days after the application is lodged, or such other period as the administrator and person agree on. 14 As PWD has not been notified of the outcome of the review, the internal review is taken to have been finalised and the application can proceed. 15 After receiving the relevant documentation from the Minister, PWD submitted that "It is plain on the face of the funding agreement provided by the Ageing and Disability Department that it constitutes an approval of financial assistance to the Intellectually and Physically Handicapped Children's Association of NSW under an instrument of delegation executed by the Minister for Disability Services. This approval is stated to commence on 1 July 1999 and was executed as a Deed between the Intellectually and Physically Handicapped Children's Association of NSW and the Ageing and Disability Department on behalf of the Minister on 3 August 1999. 16 The Minister did not agree. A detailed submission was prepared setting out the arguments which support the Minister's contention that the annual Funding Agreement does not constitute an approval for the provision of financial assistance under section 10(1)(b) of the DSA. 17 The crux of the Minister's submission is that the words "a decision approving the provision of financial assistance" in s 20(a) have a specific meaning in the DSA which does not encompass the annual Funding Agreements. 18 Section 10(1)(b) of the DSA states that: The Minister may approve the provision of financial assistance: (b) to an eligible organisation providing, or proposing to provide, designated services to persons in the target group for the purpose of enabling the eligible organisation to provide those services (2) Approval for the provision of financial assistance may not be given unless the Minister is satisfied on reasonable grounds that providing the assistance would conform with the objects of this Act and the principles and applications of principles set out in Schedule 1 19 The Minister's first point is that there is no limit placed on the period for which an approval lasts. While I accept that this is right, if financial assistance is to be paid in instalments, s 14 provides that the instalments are to be paid within 5 years after the assistance is approved. The payment of future instalments of financial assistance may be terminated at any time by the Minister in accordance with s 16. 20 The Minister's second point relates to s 17. That section provides that: Financial assistance is not payable unless the person to whom it is to be paid enters into an agreement with the Minister on the same terms and conditions as those on which the provision of the assistance was approved. The Minister may, with the consent of the other parties, vary the terms and conditions of such an agreement and the agreement is taken to have been varied accordingly. 21 The Minister submits that s 17 ". . .separates the payment of financial assistance under an agreement from the original approval. The Act sets out a staged process whereby a foundation approval is given by the Minister, and then the grant is paid out under an agreement between the organisation and the Minister's representative." 22 I agree that the meaning of s 17 is that financial assistance is not payable unless the Minister and the service provider enter into an agreement on the same terms and conditions as those on which the provision of assistance was approved. The approval of financial assistance must deal with the amounts to be applied to achieve certain purposes. 23 There is a clear difference between an approval of the provision of financial assistance and an agreement such as the Continuation of Funding Agreement with the Association. The approval is a decision made by the Minister standing alone. An agreement under section 17 is a not a decision at all. It is a deed between two parties which implements the decision to provide financial assistance. 24 For these reasons, there is no reviewable decision contained in the Continuation of Funding Agreement between the Association and the Minister executed on 3 August 1999. 25 PWD did not apply for a review of any other decision made or purported to be made by the Minister in relation to the Association. Consequently, the application for review of a decision approving the provision of financial assistance is dismissed.